Emergency Services Superannuation Board T/A ESSSuper

[2023] FWCA 2964

[2023] FWCA 2964

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Emergency Services Superannuation Board T/A ESSSuper

(AG2023/2880)

ESSSUPER ENTERPRISE AGREEMENT 2023-2024

State and Territory government administration
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 14 SEPTEMBER 2023

Application for approval of the ESSSuper Enterprise Agreement 2023 – 2024

1. An application has been made for approval of an enterprise agreement known as the ESSSuper Enterprise Agreement 2023 – 2024 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Emergency Services Superannuation Board T/A ESSSuper (Employer). The Agreement is a single-enterprise agreement.

1. The notification time for the Agreement precedes 6 June 2023. Accordingly, the legislative changes to the Act in relation to the genuine agreement provisions which commenced on 6 June 2023 do not apply to this approval application.[1] However, the Agreement was made after 6 June 2023. Accordingly, the amendments to the better off overall test have commenced and so apply to this approval application.[2]

1. The title of the Agreement in the Notice of Employee Representational Rights (NERR) is listed as “ESSSuper Enterprise Agreement 2023 - 2025.” However, the Agreement is titled “ESSSuper Enterprise Agreement 2023 – 2024” and was not provided to employees until 9 August 2023.[3] I am satisfied that:

(a)   this constitutes a minor procedural or technical error; and

(b)   employees covered by the Agreement were not likely to have been disadvantaged by the error.[4]

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The Community and Public Sector Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 21 September 2023. The nominal expiry date of the Agreement is 31 December 2024.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. However, in relation to the genuine agreement provisions, Division 11 of Part 26 of the Amending Act provides that Part 2-4 of the Act continues to apply, as if the amendments had not been made, in relation to any proposed enterprise agreement for which the notification time occurs before 6 June 2023.

[2] Division 12 of Part 26 of the Amending Act provides that the amendments to the better off overall test apply in relation to enterprise agreements made on and after 6 June 2023

[3] Form F17 dated 21 August 2023 at p.15

[4] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318

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